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1 GENERAL FACTS: INTOXICATED Dr. BOOZER CAUSES DEATH OF PATIENT IN SURGERY, LEGAL INTRIGUE IN TRIAL LEADS TO BAR COMPLAINTS The case of the patient who died at the hand of Dr. Boozer (Les Joughin), who was operating while drunk, according to his former lawyers, went to trial last month. The trial pitted two of the country s most renowned trial lawyers against each other in a high stakes legal drama. Fee Bailey (Michael Ruel), represented the family of the dead patient. Bailey asked for millions from Dr. Boozer, and the hospital that allowed Dr. Boozer to operate drunk. Bailey obtained a $20 million verdict against the doctor, but the hospital was acquitted of all liability. Bailey has now asked for a new trial because of a phone call he received after the trial from Nurse Hatchett (Jennie Tarr), the operating room nurse who assisted Dr. Boozer in the surgery. Nurse Hatchett told Bailey that the hospital covered up documents she wrote, before the operation, informing the hospital of the doctor s history operating drunk and of her observations during the fatal operation. The hospital, represented by the flamboyant Gerri Spence (Kelley Howard-Allen), says she did nothing wrong and that the documents were fully disclosed. Spence claimed Bailey just failed to do his job. Nurse Hatchett filed a bar complaint against Spence complaining of the cover up. Dr. Boozer, the now infamous drunk doctor, has also filed bar complaints against hospital lawyers Joe Sarbanes (Dominic Kouffman) and Spence. Boozer claims he thought in-house counsel Sarbanes represented him shortly after the incident. Boozer then confessed to Sarbanes that he had operated in an alcoholic haze, which caused the death of the patient. Sarbanes told Spence about the confession, who used it to blame Boozer and obtain the acquittal for her client. Boozer also filed a bar complaint against Spence who questioned him, during the recent trial, about a previous DUI. Spence had represented Boozer on the DUI. Boozer had also told Spence, during the DUI representation, that he had operated drunk in the past. The drunken doctor claims the lawyers should have kept his confessions and past history secret. Bar Counsel, John Disbarrem (Henry Lee Paul), has vowed to get all the facts necessary to prosecute the lawyers. He will present the case to the grievance committee on March 12, 2013 at 7 p.m. The committee will be asked to vote as to whether probable cause exists to prosecute the charged lawyers. Judge Jenkins will first address the committee with a discussion about the history of privilege and Bob Warchola will moderate the rest of the presentation. After committee deliberations conclude, Dominic Kouffman and Michael Ruel will instruct the committee about the applicable law of privilege and related ethical issues. Michael Ruel will provide a toast to conclude the proceedings.

3 IN THE SUPREME COURT OF FLORIDA (Before a Grievance Committee) (A Fictitious Notice Prepared for the Cheatwood Inn of Court) In re: A disciplinary matter conducted under authority of the Rules Regulating the Florida Bar Notice of Evidentiary Hearing before Grievance Committee: 13 Cheatwood TFB Nos ,123(13 Cheatwood) ,234(13 Cheatwood) ,345(13 Cheatwood) To: In-house Hospital Counsel, Joe Sarbanes; Outside Hospital Litigation Counsel, Gerri Spence; Date of Hearing: March 12, 2013 Time: Place: 7 p.m. HCBA Subject of Hearing: Complaints of Dr. Boozer and Nurse Hatchett. You will please take notice that the undersigned Grievance Committee will sit at the time and place mentioned for the purpose of investigating the alleged misconduct stated above. Rules 3-7.4(h) and (i) and (d)(7) of the Rules Regulating The Florida Bar are attached. You are requested to attend and give testimony. The conduct being investigated by the Committee is contained in the documents previously provided. A summary of the allegations is provided below. Pursuant to the requirements of Rule 3-7.4(h), the following is a list of rules which may have been violated in this case. This list may be amended, at any time, by the Grievance Committee: CASE 1 TFB No ,123 (13 Cheatwood): Complaint of Dr. Boozer (Les Joughin) against inhouse Hospital counsel, Joe Sarbanes (Dominic Kouffman). Rule 4-1.6(a) (Confidentiality of Information): Mr. Sarbanes, in-house counsel for Hospital, mislead Dr. Boozer into believing he represented him as counsel in relation to causing the death of a patient during an operation performed by Dr. Boozer in the Hospital. Dr. Boozer admits to Mr. Sarbanes that he was drunk during the operation and that is why the patient died. Attorney

4 Sarbanes then disclosed this information for the benefit of the Hospital and to the detriment of Dr. Boozer. Dr. Boozer complains Mr. Sarbanes revealed privileged and confidential information, without informed consent, in violation of Rule 4-1.6(a). Rule 4-1.6(a) A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent. (b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary:. (1) to prevent a client from committing a crime; or. (2) to prevent a death or substantial bodily harm to another. (c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to serve the client's interest unless it is information the client specifically requires not to be disclosed; (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client; (3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; (4) to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (5) to comply with the Rules of Professional Conduct. (d) Exhaustion of Appellate Remedies. When required by a tribunal to reveal such information, a lawyer may first exhaust all appellate remedies. * * * CASE 2 TFB No ,234 (13 Cheatwood): Complaint of Dr. Boozer (Les Joughin) against outside Hospital litigation counsel, Gerri Spence (Kelley Howard-Allen). Rule 4-1.9(b) and 4-1.9(c) (Conflict of Interest - Using Confidential Information to Disadvantage of Former Client, Revealing Confidential Information of Former Client): Gerri Spence was hired by Hospital as outside litigation counsel to defend the hospital from liability for the death of patient. Ms. Spence had previously represented Dr. Boozer in a DUI and was told by Dr. Boozer, during this representation, that he had operated while drunk. Attorney Spence negotiated a plea of reckless driving and had the records sealed. Ms. Spence had been successful in keeping the DUI confidential and out of public knowledge. Attorney Spence asked Dr. Boozer about the DUI and his alcohol use while operating, in a deposition taken in a lawsuit filed on behalf of the patient. Dr. Boozer complains Ms. Spence revealed privileged and confidential information in violation of Rule 4-1.9(b) and 4-1.9(c). 2

5 Rules 4-1.9(b) and 4-1.9(c) A lawyer who has formerly represented a client in a matter shall not thereafter: (b) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or (c) reveal information relating to the representation except as these rules would permit or require with respect to a client. * * * CASE 3 TFB No ,345 (13 Cheatwood): Complaint of Nurse Hatchett (Jennie Tarr) against outside Hospital litigation counsel, Gerri Spence (Kelley Howard-Allen). Plaintiff s counsel Fee Bailey (Michael Ruel) is also a witness in support of the complaint. Rules 4-3.4(a), (c) and 4-3.4(d) (Fairness to Opposing Party Concealing Evidence): Nurse Hatchet, the operating room nurse when the patient died at the hands of Dr. Boozer, had sent an to in-house counsel, prior to the operation resulting in death, warning that Dr. Boozer was regularly drunk while operating. She also kept hand written notes after the death of the patient stating that Dr. Boozer was drunk, which she gave to hospital risk management shortly after the death. It is alleged that these documents were not adequately disclosed on the privilege log and Fee Bailey did not discover the existence of the documents until after the trial, when he spoke to Nurse Hatchett. Nurse Hatchet, upset by the concealment of her statements, complains that, Ms. Spence, obstructed access to material evidence in violation of Rules 4-3.4(a), 4-3.4(c) and 4-3.4(d). Rules 4-3.4(a), 4-3.4(c) and 4-3.4(d) A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or intentionally fail to comply with a legally proper discovery request by an opposing party; * * * Pursuant to the requirements of Rule 3-7.4(a), attached is a list of the members of this Grievance Committee. Any procedural objections, motions, etc. must be submitted to the committee, and a copy to Bar counsel, at least seven (7) days in advance of this proceeding. All such matters should be marked "Personal & Confidential -- To Be Opened By Addressee Only." 3

6 Pursuant to Rule 3-7.4(i), unless it is found to be impractical by the Chair of the Grievance Committee due to unreasonable delay or other good cause, the complainant shall be granted the right to be present at any grievance committee hearing when the respondent is present before the committee. 13(Cheatwood) Judicial Circuit Grievance Committee John Disbarrem, Esq. Bar Counsel The Florida Bar 4200 George J. Bean Parkway, Suite 2580 Tampa, FL (813) Florida Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original Notice of Hearing was provided by Certified Mail Return Receipt, to all Respondents. John Disbarrem, Esq. Bar Counsel 4

7 Rule 3-7.4(h) Rights and responsibilities of the respondent. The respondent may be required to testify and to produce evidence as any other witness unless the respondent claims a privilege or right properly available to the respondent under applicable federal or state law. The respondent may be accompanied by counsel. At a reasonable time before any finding of probable cause or minor misconduct is made, the respondent shall be advised of the conduct which is being investigated and the rules which have been violated. The respondent shall be provided with all materials considered by the committee and shall be given an opportunity to make a written statement, sworn or unsworn, explaining, refuting, or admitting the alleged misconduct. Rule 3-7.4(i) Rights of the complaining witness. The complaining witness is not a party to the disciplinary proceeding. Unless found to be impractical by the chairman of the grievance committee due to unreasonable delay or other good cause, the complainant shall be granted the right to be present at any grievance committee hearing when the respondent is present before the committee. Neither unwillingness nor neglect of the complaining witness to cooperate, nor settlement, compromise, or restitution, will excuse the completion of an investigation. The complaining witness shall have no right of appeal. Rule (d)(7) Contempt. Any persons who without adequate excuse fail to obey such a subpoena served upon them may be cited for contempt of this Court in the manner provided by this rule. 5

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11 Eggers v. Eggers, 776 So.2d 1096 (2001) 26 Fla. L. Weekly D So.2d 1096 District Court of Appeal of Florida, Fifth District. Frederick W.J. EGGERS, Appellant, v. Ellen EGGERS, Appellee. No. 5D Feb. 9, Mother brought action against son for conversion. The Circuit Court, Citrus County, Barbara Gurrola, J., denied son s motions to transfer venue and to disqualify mother s attorney. Son appealed. The District Court of Appeal, Cobb, J., held that: (1) change of venue was warranted, but (2) mother s attorney did not have a conflict of interest. Reversed and remanded. [3] [4] Venue Counter Affidavits and Other Evidence When a forum non conveniens challenge is raised, it is incumbent upon the parties to submit affidavits or other evidence that will shed necessary light on the issue of the convenience of the parties and witnesses and the interest of justice. West s F.S.A Cases that cite this headnote Venue Counter Affidavits and Other Evidence Plaintiff s unsworn response to defendant s motion to transfer venue was not evidence. West Headnotes (10) [1] Appeal and Error Venue [5] Venue Counter Affidavits and Other Evidence Having failed to raise improper venue in his motion below, defendant could not raise the issue for the first time on appeal. West s F.S.A. RCP Rule 1.140(b). Defendant was entitled to change of venue on grounds of forum non conveniens, where plaintiff countered with no sworn evidence after defendant attached affidavits from prospective witnesses indicating that it would be a hardship if they had to travel to plaintiff s venue to testify. West s F.S.A Cases that cite this headnote [2] Venue Counter Affidavits and Other Evidence Under the forum non conveniens statute, a plaintiff s forum selection is presumptively correct and the burden is on the defendant to show either substantial inconvenience or that undue expense requires change for the convenience of the parties or witnesses. West s F.S.A [6] Certiorari Subject-Matter Denial of motion to disqualify attorney was reviewable by certiorari. 1 Cases that cite this headnote 9 Cases that cite this headnote 2013 Thomson Reuters. No claim to original U.S. Government Works. 1

12 Eggers v. Eggers, 776 So.2d 1096 (2001) 26 Fla. L. Weekly D438 [7] Attorney and Client Disqualification in General Disqualification of a party s chosen counsel is an extraordinary remedy and should be resorted to sparingly. 2 Cases that cite this headnote Attorneys and Law Firms *1097 Thomas F. Granahan of Thomas F. Granahan, P.A. and Karen E. Guito, Tampa, for Appellant. Richard S. Fitzpatrick of Fitzpatrick & Fitzpatrick, P.A., Inverness, for Appellee. Opinion COBB, J. [8] [9] [10] Attorney and Client Particular Cases and Problems In mother s conversion action against son, mother s attorney did not have conflict of interest arising from son s consultations with attorney during son s divorce case; no attorney-client relationship had existed between attorney and son, and conversion action was not related to the prior divorce action. Attorney and Client What Constitutes a Retainer Son did not have attorney-client relationship with his mother s attorney, even though attorney provided advice to son regarding his divorce case; son paid nothing to attorney, and no agreement for representation was discussed or reached. 2 Cases that cite this headnote Attorney and Client What Constitutes a Retainer Existence of a formal retainer agreement is not essential to the finding of an attorney-client relationship. 2 Cases that cite this headnote Frederick Eggers seeks review of an interlocutory order which denies his motions to transfer venue and to disqualify attorney. The appellee, Ellen Eggers, sued her son, Frederick, for conversion. Frederick is a resident of Hillsborough County. The action was brought in Citrus County. The complaint does not allege the basis for venue in Citrus County. Frederick moved to transfer and/or dismiss pursuant to section , Florida Statues, the forum non conveniens statute. This motion was sworn to by Frederick. Frederick alleged that venue was more appropriate in Hillsborough County where some 19 witnesses reside and that the expense and inconvenience to these witnesses if venue remained in Citrus County would be an undue hardship. Affidavits from some 10 prospective witnesses were attached to the motion. Ellen filed an unsworn response asserting that she is 87 years of age and resides in Citrus County and that it would be an undue hardship on her and her witnesses, all of whom are residents of Citrus County, if they were required to travel to Hillsborough County. Frederick also filed a motion to disqualify Ellen s attorney, Richard Fitzpatrick, claiming he and Fitzpatrick had an attorney-client relationship in the past when Fitzpatrick advised him in connection with his 1991 divorce. A hearing was held and Frederick and attorney Fitzpatrick were the sole witnesses. Frederick testified that in his 1991 divorce case he found it necessary to consult with Fitzpatrick, who was his mother s attorney, on three occasions concerning his mother s will and monetary gifts in the form of savings accounts she had made to her grandchildren over the years. Fitzpatrick advised Frederick that he could withdraw the money ($60,000-$70,000) and return it to his mother, which Frederick did. Fitzpatrick billed Ellen for his work in this regard and Ellen paid the bill. Frederick has never received a bill from Fitzpatrick nor paid him for any professional services. During closing argument, Frederick s counsel referred to Ellen as living in Tampa when all these activities took place. No testimony or 2013 Thomson Reuters. No claim to original U.S. Government Works. 2

13 Eggers v. Eggers, 776 So.2d 1096 (2001) 26 Fla. L. Weekly D438 other evidence to this effect appears of record. The trial court denied both motions. We reverse the venue ruling. Frederick s motion to transfer/dismiss was filed solely pursuant to section which provides: For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought. *1098 [1] Frederick did not assert in his motion or at the hearing that Citrus County was an improper venue for this action under the general venue statute, section , Florida Statutes. A motion to dismiss/transfer venue due to the impropriety of the plaintiff s venue selection is significantly different than a motion to transfer on forum non conveniens grounds. See PricewaterhouseCoopers LLP v. Cedar Resources, Inc., 761 So.2d 1131 (Fla. 2d DCA 1999). Improper venue can be waived if not timely raised. See Florida Rule of Civil Procedure 1.140(b). Having failed to raise improper venue in his motion below, Frederick cannot raise the issue for the first time on appeal. 1 See Sparta State Bank v. Pape, 477 So.2d 3 (Fla. 5th DCA 1985); Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980). Given Frederick s waiver, Citrus County is deemed a legally acceptable venue and the issue on appeal concerns whether the trial court abused its discretion in concluding that Citrus County was the preferable site for litigation of this action. See Hu v. Crockett, 426 So.2d 1275 (Fla. 1st DCA 1983). [2] [3] Under the forum non conveniens statute, a plaintiff s forum selection is presumptively correct and the burden is on the defendant to show either substantial inconvenience or that undue expense requires change for the convenience of the parties or witnesses. See Government Employees Ins. Co. v. Burns, 672 So.2d 834 (Fla. 3d DCA 1996); Vero v. Vero, 659 So.2d 1348 (Fla. 5th DCA 1995). This court has instructed that when a forum non conveniens challenge is raised, it is incumbent upon the parties to submit affidavits or other evidence that will shed necessary light on the issue of the convenience of the parties and witnesses and the interest of justice. See Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So.2d 1138 (Fla. 5th DCA 1998). See also Hu v. Crockett (pointing out in forum non conveniens challenge that record contained various admissions and a deposition). [4] [5] Frederick filed a sworn motion to transfer/dismiss and attached affidavits from prospective witnesses indicating they resided in Hillsborough County and that it would be a hardship if they had to travel to Citrus County to testify. 2 Ellen countered with no sworn evidence on the relevant issues. Ellen s unsworn response does not constitute evidence. See Toyota Tsusho America, Inc. v. Crittenden, 732 So.2d 472 (Fla. 5th DCA 1999). The trial court had before it only evidence that the more convenient forum is Hillsborough County. Under these circumstances, it was an abuse of discretion to fail to transfer venue to Hillsborough County under section [6] [7] As to the denial of the motion to disqualify attorney Fitzpatrick, that ruling is reviewable by certiorari. See Double T Corp. v. Jalis Development, Inc., 682 So.2d 1160 (Fla. 5th DCA 1996); Transmark, U.S.A., Inc. v. State, Dep t of Ins., 631 So.2d 1112 (Fla. 1st DCA), rev. denied, 639 So.2d 983 (Fla.1994). 3 Disqualification of a party s chosen counsel is an extraordinary remedy and should be resorted to sparingly. *1099 Abamar Housing and Development, Inc. v. Lisa Daly Lady Decor, Inc., 724 So.2d 572 (Fla. 3d DCA 1998); Lee v. Gadasa Corp., 714 So.2d 610 (Fla. 1st DCA 1998). Frederick s position is that he established the existence of an attorney-client relationship and that under applicable case law an irrefutable presumption arose that confidences were disclosed. 4 See Russakoff v. Dep t of Ins., 724 So.2d 582 (Fla. 1st DCA 1998); Simon DeBartolo Group, Inc. v. Bratley, 741 So.2d 1254 (Fla. 1st DCA 1999). The only remaining inquiry is whether the former client has shown that the current subject matter is the same or substantially related to the matter in which the attorney represented the former client. Russakoff; Simon DeBartolo. [8] [9] We find that Frederick s initial premise that he established an attorney-client relationship is weak. Fitzpatrick s client was always Ellen. He advised Frederick on the legal issue of Ellen s monetary gifts to Frederick s children at the request of Ellen. Fitzpatrick s advice was to have the monies returned to Ellen. Frederick paid Fitzpatrick nothing. No agreement for representation was discussed much less reached between Fitzpatrick and Frederick. In this regard, the instant case is distinguishable from our recent decision in Key Largo Restaurant, Inc. v. T.H. Old Town Associates, Ltd., 759 So.2d 690 (Fla. 5th DCA 2000). Unlike here, in that case, the trial court found an attorney-client relationship existed where the attorney had previously represented both parties, albeit briefly. In Key Largo, however, this representation was formally recognized and this court, in affirming an order of disqualification, noted that The law 2013 Thomson Reuters. No claim to original U.S. Government Works. 3

14 Eggers v. Eggers, 776 So.2d 1096 (2001) 26 Fla. L. Weekly D438 does not require a long or complicated attorney-client relationship to fulfill the requirements for disqualification. 759 So.2d at 693. [10] While the existence of a formal retainer agreement is not essential to the finding of an attorney-client relationship, Dean v. Dean, 607 So.2d 494 (Fla. 4th DCA 1992), the trial court here did not find the existence of an attorney-client relationship between Frederick and Fitzpatrick. Even assuming arguendo the existence of such a relationship between Frederick and Fitzpatrick, Frederick failed to demonstrate that the instant litigation involves the same subject matter or is substantially related to the matter in which Fitzpatrick counseled Frederick. The advice Fitzpatrick gave to Frederick in 1991 concerned return to Ellen of monies Ellen had previously gifted to Frederick s children. Frederick testified he returned these monies to his mother. Any claim of conversion by Frederick of Ellen s assets is entirely distinct from this earlier advice. See Bartholomew v. Bartholomew, 611 So.2d 85 (Fla. 2d DCA 1992) (quashing order disqualifying counsel where evidence was insufficient to establish professional relationship between husband and attorney who had represented wife while couple was married and current claim concerning husband s dissipation of marital asset was distinct from assistance provided by attorney years earlier in acquiring said asset). We hold that the trial court did not depart from the essential requirements of law in denying disqualification. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). Accordingly, we reverse the portion of the order denying transfer of venue, deny the petition for writ of certiorari, and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. PETERSON and PALMER, JJ., concur. Parallel Citations 26 Fla. L. Weekly D438 Footnotes 1 Cases such as Miller v. Southland Ins. Co., Inc., 513 So.2d 800 (Fla. 4th DCA 1987) and Tropicana Products, Inc. v. Shirley, 501 So.2d 1373 (Fla. 2d DCA 1987) relied upon by Frederick for the proposition that where a defendant files a sworn motion and affidavits challenging venue, the burden shifts to the plaintiff to prove its selection of venue is proper, are thus inapplicable. 2 Ellen claims that these affidavits constitute little more than a laundry list of names and conclusory statements of inconvenience. See R.C. Storage One, Inc. v. Strand Realty, Inc., 714 So.2d 634 (Fla. 4th DCA 1998). However, unlike the affidavits in R.C. Storage, the affidavits here reflect the gist of the relevant knowledge of the witnesses. 3 This court by order has allowed Frederick to pursue the disqualification issue by petition for writ of certiorari since the jurisdictional requisites for such review were satisfied. See Fla.R.App.P (c). 4 There is no evidence that Fitzpatrick actually obtained any confidential information concerning Frederick which he is now in a position to use on behalf of Ellen. Thus, this is not a situation where Fitzpatrick obtained confidential information and then switched sides. See Kenn Air Corp. v. Gainesville-Alachua County Regional Airport Authority, 593 So.2d 1219 (Fla. 1st DCA 1992). End of Document 2013 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 4

15 The Florida Bar v. King, 664 So.2d 925 (1995) 20 Fla. L. Weekly S So.2d 925 Supreme Court of Florida. THE FLORIDA BAR, Complainant, v. Freeman KING, Respondent. No Sept. 14, Rehearing Denied Dec. 20, In attorney discipline action, the Supreme Court held that attorney s failure to file answer to complaint by extension date, failure to appear at hearing on summary judgment motion, failure to notify his client that plaintiff that sued client had scheduled depositions for his clients, failure to attend depositions, failure to initiate communications that would keep his clients adequately informed about his representation, and failure to respond to his clients requests for status reports about his representation warranted three-year suspension from practice of law. So ordered. West Headnotes (5) [2] [3] Attorney and Client Misconduct as to Client Attorney had entered into attorney-client relationship with alleged client, as required for attorney to be subject to discipline for neglect of alleged client s suit, even if alleged client had not paid attorney cash retainer, where attorney wrote letter to opposing counsel that identified himself as having been retained by alleged client, and filed answer and counterclaim in which he identified himself as attorney for alleged client. 1 Cases that cite this headnote Attorney and Client What Constitutes a Retainer Fee is not necessary to form attorney-client relationship. 4 Cases that cite this headnote [1] Attorney and Client Definite Suspension [4] Attorney and Client Other Factors Attorney s failure to file answer to complaint by extension date, failure to appear at hearing on summary judgment motion, failure to notify his client that plaintiff that sued client had scheduled depositions for his clients, failure to attend depositions, failure to initiate communications that would keep his clients adequately informed about his representation, and failure to respond to his clients requests for status reports about his representation warranted three-year suspension from practice of law, in light of disciplinary history that included public reprimand, admonition, and 90-day suspension for misconduct. West s F.S.A. Bar Rules 4-1.1, 4-1.3, 4-1.4(a), 4-1.4(b). [5] Sanction in bar disciplinary case must be fair to society, fair to attorney, and it must sufficiently deter other attorneys from similar misconduct. Attorney and Client Factors in Aggravation In determining appropriate sanction in attorney discipline case, Supreme Court may consider attorney s disciplinary history. 1 Cases that cite this headnote 2013 Thomson Reuters. No claim to original U.S. Government Works. 1

16 The Florida Bar v. King, 664 So.2d 925 (1995) 20 Fla. L. Weekly S471 Attorneys and Law Firms *925 John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and Alisa M. Smith, Bar Counsel and David M. Barnovitz, Co-Bar Counsel, Fort Lauderdale, for complainant. James O. Walker, III of the Law Offices of James O. Walker, III, Pompano Beach, for respondent. Opinion PER CURIAM. This attorney-discipline case is before the Court on petition of attorney Freeman King, who seeks review of a referee s recommendation that he receive a five-year suspension for his handling of a case. We have jurisdiction based on article V, section 15 of the Florida Constitution. We approve the referee s findings of fact, but find that the referee s recommendation of a five-year suspension cannot stand because Rule Regulating the Florida Bar 3-5.1(e) prohibits suspension for a specific time period of more than three years. We impose a three-year suspension on King because that sanction serves the purposes of attorney discipline. King was admitted to The Florida Bar in October In November 1994, the Bar filed a four-count complaint accusing King of misconduct in connection with his representation *926 of Charles Baldwin. Baldwin had spoken with King in late 1992 about a lawsuit involving Baldwin and his company, CSB Construction, Inc. The suit, which named Baldwin and his company as defendants, was filed on December 3, [1] The referee made these findings of fact: Count 1 concerns an extension of time that King received to file an answer to the complaint. King failed to file an answer by the extension date, January 8, The court entered a default judgment against the defendants on January 12, 1993, based on King s failure to file any papers in the litigation. (Although not in the referee s findings, the record shows that King filed an answer and a counterclaim on January 13, 1993.) Count 2 deals with a motion for summary judgment that opposing counsel filed. King did not appear at a hearing on the motion, and the court entered an order of summary final judgment against Baldwin and his company. King later asked the court to excuse his clients from summary judgment, but the court found that King s neglect and failure to attend the noticed hearing were inexcusable. In Count 3, the referee found that King was notified that the plaintiff had scheduled depositions for his clients. King did not notify his clients of the depositions, and neither they nor King attended. Count 4 concerns King s failure to initiate communications that would keep his clients adequately informed about his representation and his failure to respond to his clients requests for status reports about his representation. In Counts 1, 2, and 3, the referee found King guilty of violating Rule Regulating the Florida Bar (lawyer shall provide competent representation to a client) and Rule (lawyer shall act with diligence in representation of a client). In Count 4, the referee found King guilty of violating Rule 4-1.4(a) (lawyer shall inform client of status of representation and promptly comply with reasonable requests for information) and Rule 4-1.4(b) (lawyer shall explain matter to the extent reasonably necessary to permit client to make informed decisions about the case). King s disciplinary history includes a public reprimand for his indemnification of clients who suffered a monetary loss; a grievance committee admonition for findings including lack of diligence and inadequate client communication; and a ninety-day suspension for misconduct including trust account violations. Based on King s disciplinary record and the violations in the instant case, the referee recommended a five-year suspension. He also recommended that King be required to pay at least $ in costs and allowed the Bar to file a supplemental statement of costs at a later date. [2] King has filed a petition challenging the referee s findings, determination of guilt, and recommended sanction. He contends that although he and Baldwin discussed the lawsuit, the two did not have an attorney-client relationship. He asks this Court to remand the case for a determination of when Baldwin paid a cash retainer. King argues that unless the referee finds on remand that Baldwin paid a retainer, there is no attorney-client relationship and no basis for a finding of misconduct and imposition of sanctions. King argues that a contract for employment as an attorney must be supported by consideration. Baldwin claims to 2013 Thomson Reuters. No claim to original U.S. Government Works. 2

17 The Florida Bar v. King, 664 So.2d 925 (1995) 20 Fla. L. Weekly S471 have paid King a cash retainer in December King says Baldwin could not have retained him then because he was out of the office during much of December due to illness and hospitalization. King says Baldwin did not pay any retainer until February 1993, when Baldwin gave him an $800 check (for which there were insufficient funds). King acknowledges that he took actions in connection with the suit against Baldwin and his company, but says they do not support an attorney-client relationship. We disagree. King wrote a letter to opposing counsel on December 7, 1992, that says this office has been retained by Charles Baldwin. He talked on the phone with opposing counsel about securing an extension of time in which to file an answer. He wrote opposing counsel on January 13, 1993, and thanked him for *927 agreeing to the extension of time because King could not file an Answer on behalf of my client within the appropriate time frame. And King filed an answer and counterclaim in which he identified himself as the attorney for defendants Baldwin and CSB Construction. We need not resolve any factual disputes over when King and Baldwin met and whether Baldwin paid a cash retainer. The record shows that King took action on behalf of Baldwin and his company and King identified them as his clients. [3] A fee is not necessary to form an attorney-client relationship. Dean v. Dean, 607 So.2d 494, 500 (Fla. 4th DCA 1992) (also explaining that payment of fee is not required to create attorney-client privilege), review dismissed, 618 So.2d 208 (Fla.1993). If a fee were required to establish an attorney-client relationship, a lawyer could never perform work pro bono for a client. Courts have also recognized that while lawyers are entitled to charge for their services, they cannot simply abandon a case once they have provided services without compensation. Atilus v. United States, 406 F.2d 694, 696 (5th Cir.1969); see also Brown v. Vermont Mut. Ins. Co., 614 So.2d 574, (Fla. 1st DCA 1993) ( Once an attorney has appeared in pending litigation to represent a party, that attorney cannot withdraw from the case pursuant to discharge by the client without leave of court granted by order after due notice to both the attorney and client. ). King s actions establish an attorney-client relationship. Once he began representing Baldwin and his company, he could not simply stop representing his clients without following the procedures for withdrawal described in Rule (d) (requiring withdrawing lawyer to take steps to protect a client s interest). King did not try to protect his clients interest, as shown, for example, by his failure to respond to notices for depositions and by allowing the entry of summary final judgment. We find support in the record for the referee s findings and, accordingly, uphold the findings. Both Baldwin and the Bar agree that the referee s recommended five-year suspension exceeds the length of suspension allowed by Rule 3-5.1(e) ( No suspension shall be ordered for a specific period of time in excess of 3 years. ). Thus, we must decide the appropriate sanction for King. [4] [5] The sanction in a bar disciplinary case must serve three purposes: the judgment must be fair to society, it must be fair to the attorney, and it must sufficiently deter other attorneys from similar misconduct. Florida Bar v. Wasserman, 654 So.2d 905, 907 (Fla.1995). In addition, this Court may consider an attorney s disciplinary history. Id. at 908. King has been sanctioned three times since First, he received a public reprimand and probation for neglect in Second, he received a grievance committee admonishment for neglect in Third, he received a ninety-day suspension and three years probation in 1994 for separate, numerous grievances including lack of diligence, inadequate client communications, incompetent representation, trust account violations, and misrepresentations. King has shown a pattern of neglecting clients and seriously affecting their interests. In addition, the misconduct in the instant case occurred while he was on probation for the 1994 case. Under the circumstances, a three-year suspension is the appropriate sanction for King. This sanction serves the purposes of attorney discipline and reflects our concern with King s disciplinary history. King is hereby suspended from the practice of law for three years. The suspension will be effective thirty days from the filing of this opinion so King can close out his practice and protect the interests of existing clients. If King notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. King shall accept no new business from the date this opinion is published until the suspension is completed. The costs of these proceedings are taxed against King and judgment is entered in the *928 amount of $1,338.92, 1 for which sum let execution issue Thomson Reuters. No claim to original U.S. Government Works. 3

18 The Florida Bar v. King, 664 So.2d 925 (1995) 20 Fla. L. Weekly S471 It is so ordered. Parallel Citations 20 Fla. L. Weekly S471 GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur. Footnotes 1 The costs include $836.65, as listed in the referee s final report, and $502.27, as listed in the Bar s supplemental statement of costs. End of Document 2013 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 4

19 Keir v. State, 152 Fla. 389 (1943) 11 So.2d Fla. 389 Supreme Court of Florida, Division B. KEIR et al. v. STATE. Corpus delicti A conviction cannot be upheld upon a naked confession alone without additional proof of the corpus delicti. 6 Cases that cite this headnote Feb. 12, Viola Mae Keir and another were convicted of perjury and they appeal. Reversed. West Headnotes (10) [4] Criminal Law Confessions Confession should not be received in evidence at all unless there is at least some prima facie proof of the corpus delicti. 9 Cases that cite this headnote [1] Perjury Nature and elements of offenses in general In order to sustain a conviction for perjury, not only must the substance of alleged false testimony be proven but it must be also proven that such testimony was material to issue upon which trial was had and was in fact false testimony and that accused knew of its falsity and wilfully swore to it as true. [5] Perjury Weight and Sufficiency in General In prosecution for perjury based on testimony in divorce action relative to residence of party to divorce proceeding, evidence held insufficient to sustain conviction. 3 Cases that cite this headnote [2] Perjury Elements and evidence requiring corroboration Falsity of material matter sworn to in order to sustain conviction for perjury must be proved by oaths of two witnesses or by oath of one witness and other independent and corroborating circumstances which are of equal weight with testimony of another witness. [6] Privileged Communications and Confidentiality Attorney-Client Privilege Common law rule that attorney could not be compelled to divulge any communication made to him by client nor disclose any advice given by him in course of his professional employment without consent of client is recognized in Florida. 3 Cases that cite this headnote 4 Cases that cite this headnote [3] Privileged Communications and Confidentiality Criminal Law 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 [7]

20 Keir v. State, 152 Fla. 389 (1943) 11 So.2d 886 Relation of Attorney and Client Generally, relation of attorney and client must exist in order for communications between them to be privileged. 4 Cases that cite this headnote *390 **887 Appeal from Criminal Court of Record, Hillsborough County; John R. Himes, Judge. [8] [9] [10] Privileged Communications and Confidentiality Relation of Attorney and Client Communications made by a person to an attorney with view to employing him professionally fall within rule that communications between attorney and client are privileged although attorney is not subsequently employed. 4 Cases that cite this headnote Criminal Law Obstructing justice, bribery, and perjury In prosecution for perjury based on testimony in divorce action respecting residence, extrajudicial confessions were improperly admitted in view of lack of other evidence establishing corpus delicti. 8 Cases that cite this headnote Privileged Communications and Confidentiality Relation of Attorney and Client Letters between nonresident and attorney relating to residence requirements for divorce within state and costs thereof were privileged communications though attorney was not employed, and should have been excluded as such in subsequent prosecution against nonresident for perjury in connection with divorce obtained by her. 3 Cases that cite this headnote Attorneys and Law Firms R. G. Tittsworth, of Tampa, for appellants. J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, and John C. Wynn, Asst. Attys. Gen., for appellee. Opinion SEBRING, Justice. Viola Mae Keir and Anna A. Cramer were convicted of perjury. They are charged with giving false testimony in a divorce suit, to the effect that Viola Mae Keir had been a continuous, bona fide resident of the State of Florida since June 12, The divorce suit referred to was instituted in the Circuit Court of Hillsborough County on September 18, * Viola Mae Keir was plaintiff in that suit and Alexander Keir, her husband, was defendant. A certified copy of the court record was a part of the evidence in the perjury trial. The bill of complaint alleged that Viola Mae Keir was a resident and citizen of the State of Florida and had been such resident for more than 90 days continuously preceding and prior to the filing of suit. Alexander Keir answered, admiting the residence as alleged. At the trial of the divorce suit, on September 29, 1942, Viola Mae Keir and Anna A. Cramer testified under oath to the statements attributed to them in the criminal charge. The principal questions raised by Anna A. Cramer on her appeal concern the sufficiency of the evidence to support the judgment, and the propriety of admitting an extrajudicial confession in evidence against her. Viola Mae Keir raises the same questions; and also the question whether certain letters admitted at the trial should not have been excluded, as privileged communications. The testimony is meagre. Mrs. Rufus Riggsbee testified for the prosecution that on June 12, 1942, she had rented some rooms in her home at Tampa, Florida, to Anna A. Cramer. Mrs. Cramer took possession and moved in immediately thereafter. Viola Mae Keir came to live with Mrs. Cramer at the residence about September 1, Mrs. Keir told Mrs. Riggsbee that she was from New 2013 Thomson Reuters. No claim to original U.S. Government Works. 2

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